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A New Decision on Facebook: Ex Parte Injunctions and Preservation Orders

Another Ontario decision dealing with production of Facebook profiles in personal injury lawsuits was released on October 29, 2009. In Schuster v. Royal & SunAlliance Insurance Company of Canada, the defendant brought a motion before a judge, without notice to the plaintiff, seeking an injunction requiring the plaintiff to preserve and produce her Facebook webpage. The particulars of the decision are set out in detail, below.

The plaintiff claimed that, as a result of a car accident, she suffered injuries that impaired her ability to work and to participate in social and recreational activities. During litigation, she produced an “affidavit of documents” (a sworn list of all documents in a party’s possession, including electronic documents, that are relevant to the lawsuit) in which she failed to disclose the existence of her Facebook account.

The defendant hired a surveillance company and discovered the Facebook account, for which access was restricted to 67 “friends”, one being the plaintiff’s mother-in-law. The defendant was able to obtain photographs from the mother-in-law’s Facebook account in which there were pictures of the plaintiff dated before and after the accident, although she was just standing, sitting or reclining (she was not engaged in any activities in relation to which she claimed to be impaired).

The defendant had brought the motion on an ex parte basis (that is, without notice to the plaintiff) seeking anInterim Order for the Preservation of Property under Rule 45.01 of Ontario’s Rules of Civil Procedure, R.R.O. 1990, Reg. 194). (Ex parte motions are typically granted where urgency arises because there is a reason to believe that the responding party, if given notice of the motion, will take steps to frustrate the process of justice before the motion can be decided). Rule 45.01 states:

INTERIM ORDER FOR PRESERVATION OR SALE

45.01 (1) The court may make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or of a person not a party. R.R.O. 1990, Reg. 194, r. 45.01 (1).

(2) Where the property is of a perishable nature or likely to deteriorate or for any other reason ought to be sold, the court may order its sale in such manner and on such terms as are just. R.R.O. 1990, Reg. 194, r. 45.01 (2).

The Court noted that Rule 45.01(1) is “typically used to ensure that important documents, information or other items are preserved and available for the trial of an action where there is a strong likelihood that the defendant would destroy this evidence once notified of the proceedings”. As a result, an order under Rule 45.01 is similar to a civil search warrant and therefore subject to a higher threshold test than an “ordinary” ex parte injunction, pursuant to s. 101 of the Courts of Justice Act (“CJA”). (Note that Rule 40 of the Rules of Civil Proceduresets out the procedure to be followed in order to obtain an order under s. 101 of the CJA).

Justice Price noted that it was unclear whether the defendant was seeking access to just the web site, or the preservation and production of the website contents, and noted that an order granting the defendant access to the site would be far more invasive than ordering the plaintiff to preserve the contents of the site. Since an order granting the defendant access to the plaintiff’s Facebook account would have required the plaintiff to provide her username and password to the defendant (and was beyond the scope of her obligation to disclose relevant documents), the Court proceeded on the assumption that the defendant was only seeking an order for preservation of the site.

Justice Price then considered whether the defendant had met the test for an ordinary ex parte injunction under s. 101 of the CJA:

101.(1)In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so. R.S.O. 1990, c. C.43, s. 101 (1); 1994, c. 12, s. 40; 1996, c. 25, s. 9 (17)

Terms

(2)An order under subsection (1) may include such terms as are considered just. R.S.O. 1990, c. C.43, s. 101 (2).

1.) Is there a serious question to be tried? Judge Price found that there was a serious question to be tried, namely, the extent to which the accident had prevented the plaintiff from earning and income and engaging in recreational activities.

2.) Will the applicant suffer irreparable harm if the application is not granted? This is usually determined by considering whether damages will be an adequate remedy. In this case, the defendant argued that without the content of the Facebook webpage, it woudl be deprived of the opportunity to properly respond to the plaintiff’s claim. The Judge disagreed noting that proof of irreparable harm must be clear and not speculative ; there was no evidence that there were incriminating photographs on the plaintiff’s Facebook page. In fact, Justice Price held that since the plaintiff had not listed the Facebook page in her affidavit of documents, the presumption was that this was because the Facebook page did not contain any relevant information. Unlike in previous Ontario cases dealing with Facebook production, in this case, the judge was NOT prepared to draw an inference from the nature of Facebook itself or the plaintiff’s profile that her Facebook page was likely to contain relevant evidence, stating:

I do not regard the mere nature of Facebook as a social networking platform or the fact that the Plaintiff possesses a Facebook account as evidence that it contains information relevant to her claim or that she has omitted relevant documents from her Affidavit of Documents. The photographs that the Defendant has obtained from the Plaintiff’s account in the present case do not appear, on their face, to be relevant”.

3. Whom Does the Balance of Convenience Favor? In weighing the privacy interests of the plaintiff and the defendant’s interest in full disclosure, the court concluded that the balance favored the plaintiff:

The plaintiff’s failure to disclose her Facebook account in her affidavit of documents should give rise to the presumption that the information on the webpage is not relevant to the litigation – the defendant has the opportunity to rebut this presumption by cross-examining her on her affidavit of documents if it so chooses.

The defendant had been at liberty to question the plaintiff about her Facebook account at her examination for discovery.

There was no evidence to support the defendant’s proposition that the plaintiff was likely to delete any relevant contents of her Facebook profile pending trial.

The Plaintiff has set her Facebook privacy settings to private and has restricted its content to 67 “friends”. She has not created her profile for the purpose of sharing it with the general public. Unless the Defendant establishes a legal entitlement to such information, the Plaintiff’s privacy interest in the information in her profile should be respected.

As a result of the foregoing, the Court concluded:

The Defendant has not established a basis for a preservation order in the present case, especially on an ex parte motion. The Defendant has not put forward evidence, beyond a bald assertion, that there is relevant evidence that needs to be preserved. It also has not put forward evidence beyond mere speculation to support a conclusion that an order is required on an ex parte basis to prevent the destruction of evidence after a notice of motion for production is given and pending the return of such a motion.

The Court did decide, however, that “[b]ecause Facebook is a relatively recent phenomenon and the disclosure obligations and remedies are still being articulated in relation to it”, the Court was prepared to grant the defendant a further opportunity to cross-examine the plaintiff on her affidavit of documents if it chose to do so.

A British Columbia Court agreed that a plaintiff’s late night computer usage on Facebook was relevant to his claim that he was unable to work. The Court ordered production of his computer hard drive to determine the period of the time he spent on Facebook between 11 p.m. and 5 a.m.

In Bishop v. Minichiello, [2009] B.C.J. No. 692 (S.C.J.), the plaintiff alleged that a brain injury caused him ongoing fatigue which prevented him from being able to maintain employment. The defendant brought a motion to obtain production of the plaintiff’s hard drive of his family computer so that he could have it analyzed in order to determine the periods of time that the plaintiff spend on Facebook between 11 p.m. and 5 a.m. each day. The defendant argued that the plaintiff’s late night computer usage was relevant to the lawsuit; the plaintiff had told a doctor that he spent a substantial amount of time on Facebook chatting with his friend late at night, and that his sleep varied with the time that his friend went to bed.

On examination for discovery, the plaintiff’s mother had confirmed that the plaintiff was the only person using the family computer between those hours. The plaintiff argued that, at times, his friends could use the computer once he logged into Facebook, and that the hard drive contained information that was irrelevant to the litigation and so should not be produced. Justice Melnick noted, however, that simply because the hard drive contains irrelevant information to the lawsuit does not alter a plaintiff’s duty to disclose all relevant information. The Court concluded:

Facebook login/logout records are documents stored in electronic form for the purpose of litigation;

The information sought by the defence could have significant probative value in relation to the plaintiff’s past and future wage loss;

The value of production was not outweighed by confidentiality, or time and expense required to produce the documents; and

The order sought was so narrow that it did not have the potential to unnecessarily delve into private aspects of the plaintiff’s life.

Given that not all of the information on the hard drive was relevant, and that privacy issues of other family members might be implicated, the Court ordered that an independent expert was to review the hard drive and isolate and produce the relevant information for the defendant’s counsel.

A married woman in Nevada sued her employer, claiming that he sent her inappropriate emails and gave her unwanted sexual attention. During the lawsuit, the employer’s lawyer discovered that the woman had set up a MySpace account where she pretended to be single. The employer’s lawyer wanted to see her Myspace emails; if this woman was looking for extra-marital affairs on Myspace, this might speak to her credibility. The judge refused.

In a decision of the Nevada District Court, Mackelprang v. Fidelity National Title Agency of Nevada Inc, a married plaintiff alleged that she was sexually harassed by senior members of her company, and that this led to her constructive dismissal. She alleged, among other things, that a vice president of her company sent sexually explicit emails to her office computer a weekly basis. During the course of litigation, the defendant’s lawyer discovered that, a few months after leaving the defendant’s employ, the plaintiff had opened two Myspace accounts; in one of the accounts, the plaintiff identified herself as a single 39 year old female who did not want children, and in another account, she identified herself as a married woman with six children whom she loved.

The defendant’s lawyer obtained a subpoena directing Myspace to produce all records for those accounts, including private email exchanges between the plaintiff and others. In response to the subpoena, Myspace produced the “public” information regarding the accounts, but refused to produce private email messages in the absence of a search warrant or a letter of consent to production by the owner of the account. The plaintiff refused to consent to the obtaining of the release of the private messages on the grounds that the information sought by the defendants were irrelevant to the lawsuit and improperly invaded her privacy. She contended that the defendants were on a “fishing expedition” and that they had no relevant basis for discovering the private email messages on either account.

The defendant’s lawyer brought a motion seeking to compel the plaintiff to consent to production of the emails. The defendant’s pointed to the usual circumstances of the plaintiff’s two Myspace accounts as creating an inference that the plaintiff was using Myspace email to facilitate the same types of electronic and physical relationships that she had characterized as sexual harassment in her lawsuit. If the plaintiff had, in fact, been voluntarily pursuing extra-marital relationships through Myspace, then this information could be used to impeach her credibility and rebut her sexual harassment claims. The emails could telling as to whether the plaintiff had actually suffered emotional distress as a result of the harassment, and might contain admissions relevant to the case.

The Court disagreed with the defendant and refused to order production of the emails. The defendant had nothing more than a suspicion and speculation that the plaintiff may have engaged in sexually related email communications on Myspace. There was an insufficient connection between the accounts and the workplace to make her private emails relevant. The Court noted:

Ordering plaintiff to execute the consent and authorization form for release of all of the private email on Plaintiff’s Myspace.com internet accounts would allow Defendants to cast too wide a net for any information that might be relevant and discoverable. It would, of course, permit Defendants to also obtain irrelevant information, including possibly sexually explicit or sexually promiscuous email communications between Plaintiff and third persons, which are not relevant, admissible or discoverable.

The Nevada District Court opined that, although it was theoretically possible that emails on the Myspace account might contain relevant information, the defendant should have limited the request to the production of relevant email communications. The determination of whether certain email communications were relevant could be properly ascertained through the discovery process.

No Canadian case to date has considered a request for the production of Myspace or Facebook emails. It seems likely that Courts will treat these emails differently than the other information on a social network profile; even a “private” Myspace profile is viewable by all a user’s “friends” whereas email is not; consequently, a Court may not be able to infer from the nature of the social network service either the intent to make public, or the likely existence of, relevant email communication. As a result, courts will likely hold that there is a greater expectation of privacy with respect to Myspace or Facebook email communications. It also remains to been seen whether evidence contained in a profile itself could give rise to a sufficiently reasonable inference that that email communications are relevant. For example, if relevant postings on a Facebook wall made express reference to email communications, this might be sufficient to convince a Canadian court to order disclosure, notwithstanding the expectation of privacy surrounding such communications.

Following a recent decision of the Ontario Court of Appeal, government institutions now have to go the extra mile to comply with their MFIPPA obligation to provide access to information stored in their electronic databases – even if they have to design special software, from scratch, to get at the information.

James Rankin, a journalist with the Toronto Star, wanted to test the claim of the Toronto Police Services that their policemen do not engage in racial profiling. He wanted information from Police about whether certain people had been arrested only once, or more than once, so he submitted a requested under Ontario’s “access to information” laws. Mr. Rankin did not need to know the names of these people who had been arrested – that information is protected by our privacy laws – he just wanted to know the number of arrests. The difficulty was that the electronic databases couldn’t give just the “numbers’ – it contained the personal information as well. The Police complained that in order to comply with Mr. Jenkin’s request, they would have to design special software to get the numbers from the computer system (which would take them about two weeks). Further, this information would be only 65-70 % accurate.

The matter made its way to the Court of Appeal, in Toronto Police Services Board v. (Ontario) Information and Privacy Commissioner . The police argued that, since the information did not exist in the form that Mr. Jenkins wanted, it wasn’t a “record.” They argued that, although they might be required to produce records already in their database, they weren’t obliged to create new records. Further, the process of having to create new software to get this information would be too onerous.

any record of information however recorded, whether in printed form, on film, by electronic means or otherwise, and includes…any record that is capable of being produced from a machine readable record under the control of an institution by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution; (“document”).

In a lovely game of semantics, the Court decided to construe the word “record” broadly. It wasn’t necessary that the police “normally use” the software needed to get Mr. Jenkins the information – it was only necessary that the Police normally use the technical expertise (and computer programs/software etc.) used to create the software needed by Mr. Jenkins.

Since municipal institutions such as the Toronto Police serve the public, they ought to be open to public scrutiny. The overarching purpose of “access to information” legislation is to facilitate democracy. It is fundamental to a healthy democracy that government processes be easily scrutinized.

In a recent decision of the Ontario Superior Court of Justice issued on February 20, 2009, Justice Brown ordered the production of a plaintiff’s private Facebook profile. This is the second Canadian decision to order production of private Facebook pages for use in personal injury insurance litigation. The full text of Justice Brown’s decision, Leduc v. Roman, is available through the Canadian Legal Information Institute (CanLII) website.

Pamela Pengelley

Pamela Pengelley is a lawyer with Cozen O'Connor. She focuses her practice on subrogation, insurance and commercial litigation.
Please note that the views expressed in this blog are the author's own and are not affiliated with Cozen O'Connor.